01a03576_01A03957
03-12-2002
Valerie F. Downey v. United States Postal Service 01A03576 & 01A03957 03-12-02 .Valerie F. Downey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Valerie F. Downey v. United States Postal Service
01A03576 & 01A03957
03-12-02
.Valerie F. Downey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A03576 & 01A03957
Agency Nos. 1F-908-0020-99 & 1F-908-0039-99
DECISION
Valerie F. Downey (hereinafter referred to as complainant) initiated
timely appeals to the Equal Employment Opportunity Commission (Commission)
with regard to her complaints of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq; � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq; and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The final agency
decisions were received by complainant on April 1, 2000, and April 2,
2000, respectively. The appeals are accepted by this Commission in
accordance with 29 C.F.R. � 1614.405. Based upon a review of the record,
and for the reasons stated herein, it is the decision of the Commission
to AFFIRM the final agency decisions.
Complainant, a Distribution Clerk, filed formal EEO complaints in
April, June, and September 1999, alleging that she was discriminated
against on the bases of her race/color (white), religion (Lutheran),
sex (female), national origin (American), age (50), disability (back,
asthma, fibromyalgia, and carpal tunnel syndrome) and in reprisal for
prior EEO activity under the Rehabilitation Act when: 1. a Family Medical
Leave Act (FMLA) issue was not resolved; 2. management violated the
Freedom of Information Act (FOIA); 3.false information was given to her
Congressman; 4. management refused to convert annual leave, sick leave,
and leave without pay taken when she was sent home to administrative
leave; 5. she was told to end her tour due to a lack of work within
her medical limitations; 6. her reporting time was changed effective
August 14, 1999; 7. her requests for administrative leave were denied
on August 20, 1999, and August 23, 1999; 8. she was charged with being
absent without leave (AWOL) on August 19, 1999; 9. medical documentation
was deemed unacceptable on August 17, 1999; 10. she was issued a letter
of warning on September 9, 1999; 11. she was denied leave under the
FMLA on August 17, 1999, and August 18, 1999; and 12. she was subjected
to a hostile work environment.<1> The agency accepted complainant's
complaints for processing, and, at the conclusion of the investigations,
notified complainant of her right to request administrative hearings.
At complainant's request, the agency subsequently issued final decisions
in March 2000, finding that complainant had not been subjected to
discrimination as alleged. With regard to the issue of disability,
the agency found that complainant failed to provide sufficient medical
documentation to establish a prima facie case of discrimination. It is
from this decision that complainant now appeals.
After a careful review of the record, the Commission finds that the
agency correctly determined that complainant was not subjected to
discrimination. Issues 1, 2, and 3 concern whether the agency subjected
complainant to disparate treatment on the bases of her race/color,
religion, sex, national origin, age, disability, and prior EEO activity.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an
analytical framework for proving employment discrimination in cases
in which disparate treatment is alleged. These same standards apply
to complaints of reprisal, as well as complaints of age discrimination
brought under the ADEA. See Burrus v. United Telephone of Kansas Inc.,
683 F.2d 339 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982);
Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir. 1981). First,
complainant must establish a prima facie case by presenting enough
evidence to raise an inference of discrimination. McDonnell Douglas,
supra, at 802. The agency may rebut complainant's prima facie case by
articulating legitimate, nondiscriminatory reasons for its action, and
if the agency does so, complainant must show, by a preponderance of the
evidence, that the agency's reasons are a pretext for discrimination. Id.
The Commission notes that while the agency stated, in part, that
complainant failed to establish a prima facie case of discrimination
because she did not show that she was treated differently than similarly
situated employees, complainant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, the Commission finds that complainant failed to establish
that she was subjected to an adverse employment action with regard
to issues 1, 2, and 3. Complainant offered no evidence as to how the
agency failed to resolve an FMLA issue or committed FOIA violations.
It is noted that the record shows that complainant was granted over
140 hours of leave pursuant to the FMLA. Further, complainant did
not specify what false information was given to her Congressman,
and the record does not support a finding that such actions occurred.
Accordingly, the Commission finds that complainant was not subjected to
discrimination with regard to these issues.
In addition, the record does not support a finding of race/color,
religion, sex, national origin, or reprisal discrimination with regard to
any of the issues cited. Specifically, even assuming that complainant
could establish a prima facie case, the record does not show that the
actions raised in the underlying complaint resulted from the bases
in question.
With regard to issues 4, 5, 6, 7, 9, and 11, in order to establish a prima
facie case of disability discrimination, complainant must show that she
is an individual with a disability as defined in 29 C.F.R. � 1630.2(g),
and that she is a qualified individual with a disability as defined in
29 C.F.R. � 1630.2(m).<2> An individual with a disability is one who:
1. has an impairment which substantially limits one or more major life
activities; 2. has a record of such an impairment; or 3. is regarded as
having such an impairment. 29 C.F.R. �1630.2(g). Major life activities
include caring for one's self, performing manual tasks, walking, seeing,
breathing, learning, and working. 29 C.F.R. �1630.2(i).
It is noted that the record contains no medical evidence specifically
diagnosing complainant's condition. Nevertheless, complainant's physician
indicated, in 1990, that complainant was unable to lift over 15 pounds,
and was limited with regard to bending, twisting, and prolonged standing.
For purposes of analysis, the Commission will assume, without deciding,
that complainant is an individual with a disability.
Nevertheless, the record does not support a finding of discrimination in
this case. After complainant verbally informed her supervisor in 1999
that she was unable to work in a particular area or on a specific tour,
the agency requested that complainant provide medical documentation
regarding these limitations. Complainant submitted a statement from
her physician which reiterated the previous restrictions, and stated,
in a cursory manner, that complainant could only work from 7:00 am until
3:30 pm, and could not work on tours 1 or 3. Complainant initially
refused the agency's requests for more detailed information concerning
her limitations, specifically, the rationale for the tour restrictions.
Complainant then submitted a note which was apparently from her physician,
but which was not signed.
The Manager of Distribution Operations represented that complainant's
failure to provide the requested medical documentation made it difficult
to find 8 hours of work for her to do, and complainant did not assert that
there was work for her to do within her restrictions on those days when
she was sent home. Further, complainant's supervisor and the Manager
stated that the only area in which complainant claimed to be able to
work is completed by mid-morning, and her schedule was therefore changed
to provide her with 8 hours of work each day. The Commission notes
that it is not readily apparent how the tour restrictions are related
to the stated medical conditions, and that the agency's request for
further information regarding the issue was reasonable. Accordingly,
the Commission finds that the agency did not fail to provide complainant
with reasonable accommodation.
With regard to issues 8 and 10, the agency asserted that complainant was
charged with AWOL and given a letter of warning because she refused to
adhere to her schedule despite repeated requests to do so. Complainant
did not deny that she failed to come to work at the specified time,
claiming only that she should have been given administrative leave.
Thus, we find that complainant was not subjected to discrimination when
she was charged with AWOL and given a letter of warning.
Finally, the Commission finds no evidence to support complainant's
assertion that she was subjected to a hostile work environment.
As stated, complainant failed to establish that she was subjected to
discrimination with regard to issues 1 through 11. While complainant
asserted on appeal that she was denied union representation, she
presented no specific information concerning that action. Further,
we find complainant's general contentions that the agency violated the
FMLA not relevant to the complaint herein. Complainant has offered no
other evidence regarding her allegation of harassment. Accordingly,
it is the decision of the Commission to affirm the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-12-02______________
Date
1Complainant's allegations have been consecutively numbered for purposes
of clarity.
2The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.